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Comments on “Guidelines for
the stay petition filed before the Income-tax Appellate Tribunal” circulated
together with the Board for the week commencing 9-4-2007.
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In the latter part of
Guideline 2 it is stated that the assessee should bring to the notice of the
Assessing Officer the decision of the High Court in the case of Mahindra &
Mahindra. Should/would not the Assessing Officer know the law applicable in
the State of Maharashtra? An assessee may have an excuse for not being aware
of it! Knowing how the Department functions it is quite possible that if the
Officer’s specific attention is not drawn to the said decision he may act
contrary thereto (even if he is aware thereof) on the ground that the
assessee did not specifically bring to his notice the decision of the
jurisdictional High Court in Mahindra & Mahindra Ltd. One has seen orders
passed by high officers of the Department who have “distinguished” the
decision of the High Court at Bombay in KEC International Ltd. 251 ITR 158
on the ground that the guidelines laid down therein, requiring the concerned
officer to pass a speaking order in disposing of a stay petition, apply only
where stay is sought in respect of a matter pending before the Commissioner
(as that was the position in that case) and not where stay is sought in
respect of a matter pending before the Tribunal!
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In Guideline 3 it is stated
that any contravention by the Department of guidelines laid down in Mahindra
& Mahindra “can only be challenged before the Hon’ble High Court.” The
Department may interpret this as meaning that one cannot complain to the
Tribunal about the law laid down in Mahindra & Mahindra’s case not being
followed.
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Guidelines 4 says that: “if
any coercive steps for recovery have already been taken … the same should be
mentioned by way of application ..” It is also stated that urgent motion
would then be placed before the Bench as specified in the guidelines. With
respect, it may be necessary to move an urgent motion even where recovery
proceedings have not already been taken. The Officer may on Monday say “if
the demand is not paid by 12.00 noon on Tuesday I will attach your bank
account.” The assessee would then have no option but to move an urgent
motion before the Tribunal. The guidelines should, therefore, in our humble
submission provide that in the event of an urgency the assessee may move a
motion. The right to move an urgent motion should not be stated as being
activitated only where “steps for recovery have already been taken.”
Actually, in very urgent matters a litigant is entitled to approach a judge
even at his residence for appropriate orders and does not have to wait for
the convening of the Court.
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In Guideline 6 it is stated
that no recovery shall be done in violation of interim orders “communicated
by the Departmental representative.” Should not the officer also honour a
communication in this behalf by the assessee or his authorized
representative? If such a communication is received he may, if he wants,
check the authenticity thereof with the Department’s representative but he
cannot just ignore it and proceed with recovery proceedings. For example,
interim orders are passed at 11.00 a.m. The assessee’s representatives
informs the officer about the same at 11.30 a.m. The Department’s
representative being engaged in the Court room is unable to convey the
instructions till 1.00 p.m. when the Court normally rises. Would the Officer
be justified in taking active recovery steps at 12.00 noon?
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In Guideline 7 it is stated
that “recovery proceedings are being interfered with by the ITAT.” With
utmost respect when directing stay the learned members are not “interfering”
with the recovery proceedings but requiring the officer to proceed within
the limitations of law.
f. It was also discussed at the meeting that over and above non-recovery of
tax during the pendency of a stay application, the High Court in Mahindra &
Mahindra’s case lays down another fetter on the officers power to recover
tax, namely, that such steps ought not to be taken during the period of time
for filing an appeal. This is very necessary as otherwise on disposal of the
appeal by the Commissioner of Appeals on, say, 15th March the officer may
proceed to attach an assessee’s bank accounts on 16th March.
Notes : For Guidelines see AIFTP Journal April, 2007 page no. 35.
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